Pasadena, California, as we've written before, in addition to loving roses, apparently loves trees: the city owns 60,000 street trees as part of its "urban forest," and it has a formal policy which designates an "official tree" for each street. Rock on, Pasadena.
But in 2011, a storm blew down more than 2,000 of those city-owned trees, one of which, a 100-foot Canary Island pine, fell onto a home from an abutting parkway, causing $700,000 worth of damage. Mercury, the homeowners' insurer, paid the claim, then sued the city for inverse condemnation as subrogee.
If all of this sounds familiar, you are correct. This same court of appeal considered a similar -- but critically, not exactly the same -- case a couple of years ago, concluding that the city was liable for inverse condemnation. In that case, the court concluded the trees were a "public improvement" because city's forestry program was deliberate governmental action and served a public purpose.
But in Mercury Casualty Co. v. City of Pasadena, No. B266959 (Aug. 24, 2017), the same California Court of Appeal concluded the city was not liable for inverse condemnation because the tree at issue there was not a public improvement. What's the difference, you ask? Here, no one knew who originally planted the tree some time in the 1940s or 1950s, and the key act making trees a public improvement is the city planting them. If we don't know who planted them, they aren't the city's problem:
Based on Regency and City of Pasadena, we hold that a tree constitutes a work of public improvement for purposes of inverse condemnation liability if the tree is deliberately planted by or at the direction of the government entity as pat of a planned project or design servicing a public purpose or use, such as to enhance the appearance of public road.
Slip op. at 15.
Okay, sounds good at first blush. But here, there was no question the city owned the tree (whomever planted it back in the day) and maintained it. We'd think that those two facts should not simply be ignored but should have some part in this calculus. But no, the court focused solely on the planting of the tree, holding that this is the operative action, because by doing so, the city was affirmatively undertaking the obligation and the "calculated risk" that the tree would fall eventually. The court rejected the argument that ownership and maintenance should also be looked at, concluding that planting is like "construction" of a public work, and therefore that is the key act.